IN RE: O.H.

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Court of Appeal, Fifth District, California.

IN RE: O.H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. O.H., Defendant and Appellant.

F061176

Decided: August 24, 2011

Cecelia J. Rodriquez, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONFACTS

The court found that appellant, O.H., was a person described in Welfare and Institutions Code section 602 1 after it sustained allegations in a petition charging appellant with battery on school property (Pen.Code, § 243.2, subd. (a)).  On October 19, 2010, the court placed appellant on supervised probation.

On appeal, appellant contends:  1) the court violated section 777 when it authorized the probation officer to summarily lift the stay on a suspended juvenile hall commitment;  2) a probation condition prohibiting appellant from associating with her brother is overbroad;  3) the court erred in setting appellant's maximum term of confinement and in issuing conflicting orders with respect to removing her from her father's custody;  and 4) the minute order of appellant's disposition hearing improperly adds a penalty assessment on the restitution fine imposed by the court.   We will find merit to appellant's first, third, and fourth contentions and modify the judgment accordingly.   In all other respects, we will affirm.

On July 16, 2010, H.C. was at a school playground in Jamestown when Logan W. and Sean M. arrived and attempted to fight with him.   H.C. ran to a backstop and picked up a bat to defend himself against Logan and Sean, who had run after him.   As he turned around and raised the bat, it struck Logan in the head.   Appellant repeatedly yelled at H.C. to put the bat down.   She then grabbed the bat with one hand and punched H.C. in the face with the other.

DISCUSSION

The Suspended Juvenile Hall Commitment

At appellant's disposition hearing the court imposed and then suspended a 10–day commitment to juvenile hall.   The court also signed an order pertaining to the suspended commitment which reads as follows:

“The custody of the ․ minor having been removed from his/her parent(s)/ guardian(s) and committed to a suitable Juvenile Hall ․ for a period not to exceed ten (10) days, with credit for time served of zero days, and ten (10) days suspended;  the Probation Officer is hereby Ordered to transport said minor to said commitment in execution of the Court's order of commitment, to commence:”

The order then had a marked box next to the following language:  “AT THE DIRECTION OF THE PROBATION OFFICER.”

Appellant contends that the above order was improper because it authorized the probation officer to lift the stay on the juvenile hall commitment without a hearing as required by section 777.   We agree.

“A stayed or suspended term of confinement in juvenile cases ordered by a court upon granting probation is generally valid unless lifting of the stay is automatic upon violation of probation.  [Citation.]  Before the court can impose the ‘stayed’ commitment, the requirements of ․ section 777 (order changing or modifying previous order) must be met.  [Citation.]”  (In re Jose T. (2010) 191 Cal.App.4th 1142, 1147.)   This section requires that “An order changing or modifying a previous order by removing a minor from the physical custody of a parent, guardian, relative, or friend and directing ․ commitment to a county institution, ․ shall be made only after a noticed hearing. ․” (§ 777, italics added.)   It also requires that the notice of the hearing contain a concise statement of facts sufficient to support the conclusion that the minor has committed a violation of probation not amounting to a crime (§ 777, subd. (a)(2)) and that the facts alleged in the notice be established by a preponderance of the evidence (§ 777, subd. (c)).

Here, the order at issue violates section 777 because it allows the probation officer to summarily impose the suspended juvenile commitment without complying with this section.

Respondent contends that the court is presumed to know the law and that it committed a clerical error when it marked the box next to the language giving the probation officer the authority to summarily lift the stay on appellant's suspended juvenile hall commitment.   Nevertheless, whether marking the box was intentional or not, as it now reads, the court's order violates section 777 for the reasons stated above.

The Order Prohibiting Appellant From Associating

With Jurisdictional Hearing Witnesses

At the conclusion of the jurisdictional hearing, the following colloquy occurred:

“[PROSECUTOR]:  Only thing I would request, Your Honor, for those minors who are not detained, if the Court would consider ordering, pending disposition, that they not contact any of the witnesses from this hearing, either themselves or through a third party.

“THE COURT:  Court is going to make that order.  [¶] So be clear about this.   If either of you contact, directly or indirectly, any of the witnesses or the parties involved in this thing, Court will certainly take that into account.   And frankly, if I find out that happens, I'll instruct the probation officer to pick you up, just keep you locked up until disposition.   So know that is the situation.  [¶] What the Court means by ‘indirectly’ is having anybody else contact them.   So, if you violate that court order, do it at your own peril.”   (Italics added.)

On October 19, 2010, the court issued a written disposition hearing order which in pertinent part stated, “It is ․ ordered that all prior orders not in conflict with these orders shall remain in effect.”

Appellant contends that the latter order extended the court's jurisdictional hearing order prohibiting her from contacting any of the people who testified at her jurisdictional hearing.   She further contends that since her eight-year-old brother was a witness at that hearing and lives with her and her father, the order is unconstitutionally overbroad because it prohibits her from having any contact with her brother.   We disagree.

It is clear from the colloquy quoted above that the court ordered appellant not to contact any witnesses prior to the disposition hearing.   Therefore, the court's October 19, 2010, order extending certain prior orders did not extend to this order because by its terms the no-contact order was in effect only until appellant's disposition hearing.   Further, since the no-contact order has long since expired, appellant's constitutional challenge to the order is moot.

Appellant's Maximum Term of Confinement, the Order Removing

Appellant from her Father's Custody, and the Finding that ReasonableEfforts had been Made to Eliminate the Need for Removal from the Home

At appellant's disposition hearing the court issued a form minute order which, in pertinent part, stated that “The child is to reside in the custody of parent:  [father]” and “The minor shall live in the home of father.”   Yet in other parts it states:  “The welfare of the child requires that physical custody be removed from the parent or guardian” and “Reasonable efforts to prevent or eliminate the need for removal have been made.”   Additionally, the court set appellant's maximum term of confinement at one year.

Appellant contends that the order removing her from the custody of her father and the finding that reasonable efforts have been made to prevent her removal from his custody conflict with the order requiring her to live with her father.   Appellant further contends that the court erred in setting a maximum term of confinement because her physical custody was not removed from her father.   We agree with both contentions.

Section 726 subdivision (c) provides:

“If the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court.

“[¶] ․ [¶]

“ ‘Physical confinement’ means placement in a juvenile hall, ranch, camp, forestry camp or secure juvenile home pursuant to Section 730, or in any institution operated by the Youth Authority.”

However, when a juvenile is not removed from the physical custody of his or her parents, it is error for the court to specify a maximum term of confinement and that term should be stricken.  (In re Matthew A. (2008) 165 Cal.App.4th 537, 541.)

Here, the court placed appellant on probation in the physical custody of her father.   Thus, we agree with appellant that the order and finding noted above conflict with this order and that the court erred when it set her maximum term of confinement.

The Penalty Assessment

The court ordered appellant to pay a $50 restitution fine.   The minute order of appellant's disposition hearing, however, states that she must pay a restitution fine “in the amount of $50, plus a penalty assessment.”   Appellant contends the minute order improperly requires her to pay a penalty assessment.   Respondent concedes and we agree.

The court is authorized to impose a restitution fine of up to $100 on a minor who is adjudicated of committing one or more misdemeanors. (§ 730.6, subd. (b)(2).)

Section 730.6, subdivision (f) provides:

“Except as provided in subdivision (g), under no circumstances shall the court fail to impose the separate and additional restitution fine required by subparagraph (A) of paragraph (2) of subdivision (a).   This fine shall not be subject to penalty assessments pursuant to Section 1464 of the Penal Code.” (Italics added.)

In accord with the above section, we agree with the parties that the minute order of appellant's disposition hearing improperly requires her to pay a penalty assessment on the $50 restitution fine the court imposed.

DISPOSITION

The following are stricken:  1) the portion of the order imposing a stayed juvenile hall commitment that directs the probation officer to transport appellant to that commitment at the “direction of the probation officer” [capitalization omitted];  2) the order and finding discussed above that conflict with the court's order placing the physical custody of appellant with her father;  3) the order setting appellant's maximum term of confinement at one year;  and 4) the order imposing a penalty assessment on appellant's restitution fine.   As modified, the judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

FN1. Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code..  FN1. Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.

THE COURT * FN*.  Before Dawson, Acting P.J., Kane, J., and Franson, J.